« 이전계속 »
PREFACE TO THE FOURTH EDITION. .
The law of Contract may be described as the endeavour of the State, a more or less imperfect one by the nature of the case, to establish a positive sanction for the expectation of good faith which has grown up in the mutual dealings of men of average right-mindedness. Accordingly the most popular description of a contract that can be given is also the most exact one, namely that it is a promise or set of promises which the law will enforce. The specific mark of contract is the creation of a right, not to a thing, but to another man's conduct in the future. He who has given the promise is bound to him who accepts it, not merely because he had or expressed a certain intention, but because he so expressed himself as to entitle the other party to rely on his acting in a certain way. This is apt to be obscured in common cases, but is easily seen to be true. Suppose that A. agrees to sell to B. a thing of which not he but C. is the true owner. C. gives the thing to B. Here, though B. has got the thing he wanted, and on better terms than he expected, A. has not kept his promise ; and, if the other requisites of a lawful contract were present as between himself and B., he has broken his contract. The primary questions, then, of the law of contract are first, what is a promise ? and next, what promises are enforceable ?
To examine these questions is the object of the present book. The importance and difficulty of the first of them depends on the fact that men can justly rely on one another's intentions, and courts of justice hold them bound to their fulfilment, only when they have been expressed in a manner that would convey to an indifferent person, reasonable and reasonably competent in the matter in hand, the sense in which the expression is relied on by the party claiming satisfaction. Judges and juries stand in the place of this supposed indifferent person, and have to be convinced that the dealings in the particular case contained or amounted to the promise alleged to have been made and relied upon. For this purpose the formation of an agreement has to be analysed, and on some points doubts have to be resolved by a more or less arbitrary rule. Our first chapter is occupied with the discussion thus rendered necessary.
The rest of the book treats of the conditions on which the law will enforce an agreement made in terms, when its existence in fact is ascertained ; conditions which depend for the most part on rules of general policy above the will and control of the parties. A brief summary of the questions presented under these heads may here be given. We consider the capacity of the parties, as limited by status, enlarged by agency, or artificially created by the law of corporations (Ch. II.); the requirements of the law as to form in particular kinds of contracts (Ch. III.), and consideration (Ch. IV.); and upon what persons rights or duties may be conferred by the agreement (Ch. V.). Passing on from these general elements, we have to note in what cases the matter of an agreement, being unlawful (Ch. VI.), or impossible (Ch. VII.), prevents the law from enforcing it. Then we deal with conditions that so affect the consent or apparent consent of the parties as to deprive it wholly or partially of effect. In the cases conventionally classed under the head of Mistake (Ch. VIII.) there is, notwithstanding first appearances, no true consent, or a consent wrongly expressed. In another group of cases the consent of one party may be not binding on him by reason of misrepresentation or fraud (Chaps. IX. and X.), coercion, or undue influence (Ch. XI.). Lastly there are a certain number of anomalous cases, the results, and generally undesigned results, of peculiar legislation or usages, in which an agreement is not an enforceable contract, and yet is something more than a bare promise having no legal effect at all (Ch. XII.). When we come to the construction, performance, and enforcement of contracts, questions of another order arise. These are not dealt with in the present work except incidentally, or as they may occur in the debateable ground between rules of law and rules of construction.
The present Edition bears to the third about the same relation as the second to the first. It has been prepared in the midst of work on another subject, and few changes have been made beyond those which were called for by recent cases and statutes. As far as possible I have endeavoured to avoid increasing a bulk which now touches the limit of convenience for a single volume.
Thus I have thought myself justified, in view of the Married Women's Property Act of 1882, in relegating to the Appendix the details of the equitable doctrine of Separate Estate. I have done the like with the historical discussion of Consideration; inasmuch as, whatever explanation be right (and the problem now seems to me more difficult than it did ten years ago), the modern law stands on its own footing.
At some future time I hope to expand this work into a complete treatise on the general part of the law of Contract; in other words, to include the theory of Interpretation, Performance, and Discharge. The book thus recast should be accompanied or followed by a concise volume for the use of students, in which the outlines of the subject would be exhibited in a simpler form, and free from discursive and controversial matter. For the present, however, I must be content to have kept the book abreast of the needs of the present day within the lines of its original and more limited plan.
Mr. Reginald J. Smith, of the Chancery Bar, has kindly undertaken for me the skilled but ungrateful office of completing the Table of Cases with references to all the current Reports. In the course of this process his observation has detected a certain number of errors, which by slips of the pen or the press had crept into former editions and remained uncorrected. These are now set right either in the text or in the Addenda, besides the Table itself, in which all the corrections are embodied.
13, OLD SQUARE, LINCOLN'S INN,